R v Conaghan

“And they while away the hours
In their ivory towers”*

 

Mr Conaghan was convicted of murder in 2007.  Part of the evidence adduced against him was the claimed finding by the Forensic Science Service (FSS) of DNA matching him on a pair of spectacles.  At trial, the forensic scientist had strengthened her previously stated view on the DNA evidence incriminating Mr Conaghan on the basis that she now had more experience.

Mr Conaghan appealed against his conviction.  Hs appeal was dismissed in the Court of Appeal in R v Conaghan.  The judgement contained some criticism of Professor Jamieson of The Forensic Institute. 

Professor Jamieson was critical and questioning of a change of opinion by a prosecution expert.   He wrote in his statement,

“I reject the possibility that her opinion would be more reliable after simply looking at more DNA profiles to accumulate ‘experience’.  Without knowing the actual source of a profile (unusual in criminal cases) and without further controlled experimental data, this is a thoroughly unscientific and in my opinion unreliable position.” 

The DNA was a Low Template DNA sample.  Low Template DNA interpretation was and is controversial.  It is defined by variable results from ostensibly the same material.  Any DNA that is not attributable to a specific body fluid such as blood, semen or saliva is called trace DNA (‘touch’ is a misnomer).  Since 2007, there has been a considerable amount of research on trace DNA and how DNA can come to be on items.  There are few positive conclusions from such work, which was reviewed by Dr Meakin and Professor Jamieson in 2013 and published in a peer-reviewed journal.  The debate on what can be inferred from the finding of trace DNA nevertheless continues (see http://www.theforensicinstitute.com/news-articles/views-and-opinions/on-dna-transfer and http://www.theforensicinstitute.com/news-articles/views-and-opinions/dna-transfer).

The DNA issues in the case of R v Conaghan were the reliability of the Low Template DNA analysis as to whether the DNA could have originated from Mr Conaghan, and the mode of transfer.  Specifically, we were asked to consider the change of opinion by the Crown scientist.

In regard to the issue of whether Mr Conaghan was the source, Professor Jamieson’s statement reads;

Very low amounts of DNA mean that some alleles are not detected in every run, and possibly not at all.  When an allele should appear but does not, then the phenomenon is called dropout.  That problem of course is only apparent if an interpreter knows what DNA is present in the sample, or if more than one run is performed and the allele is absent in one or more of the runs, or in the extreme if an entire locus has no alleles present in the profile. 

Dropout is the extreme form of peak height variability.  In standard DNA profiling with the recommended amount of DNA (0.5ng – 1.5ng; 500pg – 1500pg) then the peak heights are consistent between runs.  When very low amounts of DNA are used the peak heights can vary considerably between runs, which is why peak height cannot be used as a proxy for the amount of DNA from a sample as appears to have been done here (as the FSS did not quantify DNA in the LCN process – a criticism made by the Forensic Science Regulator’s review of the technique). …

Ms Cornelius gave evidence prior to the judgement in R v Hoey (the Omagh Bomb trial) and the subsequent review initiated by the Forensic Science Regulator.  Although the Review described the LCN technique as ‘fit for purpose’, the result was a change in practice by the FSS Ltd and continued criticism from some scientists.  Today, the technique remains controversial and has yet to achieve international acceptance as it is even today being challenged as unreliable in courts and in published papers.  It is of note that the FBI DNA laboratory in the USA states,

            “The usage of test strategies to enhance the detection of DNA (sometimes referred to as Low-Copy Number, or LCN, testing) is currently being researched by the FBI Laboratory, however, none have yet demonstrated the necessary reliability for use in forensic casework by the DCU nor are any approved for uploading into the Combined DNA Index System (CODIS).”

It is widely acknowledged that R v Hoey was the first serious criticism of the LCN technique and the first time that the data claimed to support the interpretation of profiles obtained using the profiles had been examined.  Neither the criticism nor the data, which could have aided Mr Conaghan’s defence, was therefore available at the time of his trial.” [underline added]

This was a critique of the opinion expressed by the Crown scientist and how new research might affect that opinion, not a re-examination of the data. 

 

Turning now to the relevant parts of the Conaghan judgement:

“26. Professor Jamieson relying solely on a note of the evidence and without having conducted an analysis himself maintains that the circumstances of and the reason for Julie‑ Ann Cornelius's change of opinion did not withstand scientific scrutiny. He insists that her methodology has no proper scientific basis and has been shown to be unreliable. ...

34. The single judge also considered the substance of the application. He dismissed Professor Jamieson's'fresh' evidence as neither fresh nor adequate.

35. Again, we agree. We are surprised that if Professor Jamieson has the expertise and the experience that he claims, he was prepared to criticise Ms Cornelius's findings to the extent that he did solely on the basis of a note of her evidence. His approach was unsatisfactory. We would have expected him at least to call for Ms Cornelius' notes of her analysis. Had he made a simple enquiry if any other expert had examined the samples, he would have discovered Dr Short's analysis. In short, he seems to have opined on the integrity of a fellow scientist without checking his facts.” [underline added]

Professor Jamieson’s statement in R v Conaghan showed that he had spent a considerable time attempting to source the original files and data.  It stated;

“From 2008 until early 2009 most time on this case was spent by me attempting to obtain the casefile (which contained all of the scientific record) of the work performed by the FSS Ltd. This primarily involved the solicitor attempting to establish the charges that the FSS intended to levy for the work in copying the files.  For unknown reasons, the files were never obtained and I was contacted in February 2012 by a friend of Mr McHale who advised that Northumbria University Student Law Office were now dealing with the case. …

I have not seen the original FSS records or been supplied with the electronic data that would enable me to conduct my own analysis of the profiles.”

Professor Jamieson therefore acknowledged the limitations of his assessment and explained the reasons for those.   In any event, his conclusion was directed at the problems of expert changing her initial opinion, not on the data itself.  He states;

“If Ms Cornelius is now ‘more confident’, how are we to reliably assess that confidence when she was apparently confident enough to deliver her previous opinion to the Court?

She makes reference (at p.23) to guidelines.  If the guidelines were changed between her first and second opinion then it is necessary to know why.”

The judgement does not mention that Professor Jamieson stated that he had relied not only on a note of the evidence, but also the transcript of the evidence and the statements of the scientists involved (including that of Dr Short for the defence).

“I [Prof Jamieson] note that much of the evidence (transcript of oral evidence of 3rd July 07) relates to a change of opinion by Ms Cornelius. …

 I have performed all work for the Law Office pro bono using transcripts of evidence and statements from the scientists involved.”  [underline added]

An additional issue was that new research had now become available which could throw a different light on the evidence, especially in relation to DNA transfer;

“Finally, she refers to shedders and non-shedders, a concept introduced by the FSS but unsupported by later research.  Without knowledge of the history of the glasses, the concept of the wearer, toucher, or indirect transfer is unanswerable; expectations have no real evidential value and are not based on any experiments with glasses.  In fact, it is known that items can be touched and DNA not left in the majority of instances

All of these were unknown to, or ignored by, Ms Cornelius’ evidence although the uncertainties relating to DNA transfer ironically became clearer the more research that was performed. …

Ms Cornelius opined on the probability of DNA transfer events.  Subsequent research has shown that such opinions have no scientific basis.”

The Court made reference to the notes of Dr Short;

“Had he made a simple enquiry if any other expert had examined the samples, he would have discovered Dr Short's analysis. In short, he seems to have opined on the integrity of a fellow scientist without checking his facts.”

Aside from the fact that he had been asked to conduct an assessment of the evidence at trial (Dr Short did not give evidence), Dr Short had acknowledged what Professor Jamieson was now saying was the scientific situation at the time of the trial in that there had been no significant research on DNA transfer at that time.

Despite that, both experts involved in the original trial had opined on the probability of transfer (although only the prosecution expert gave evidence at the trial).  Professor Jamieson’s statement identifies that, “Subsequent research has shown that such opinions have no scientific basis”.  In other words, scientific knowledge had changed since the evidence at trial.

The judgement does not explain how Professor Jamieson’s expertise is deficient or explain which part of his expertise it takes issue with.  There was no assessment of the DNA profiles in this case, so it presumably could not be that.  Professor Jamieson made no assessment of the footwear, CCTV or anything other than the stated opinion of the Crown expert relating to

a)    Mr Conaghan as a potential source of DNA in a Low Template mixture.

b)    The possibility of DNA transfer

Each of these, as a matter of fact, had moved forward scientifically since the trial evidence of the Crown expert.  The court cite Reed & Reed from 7 years previously, subsequent to which Professor Jamieson’s expertise had also extended via his casework, publications, reading and discussions with other scientists, as well as his unchallenged appearance in courts internationally.  The only allusion to why his expertise was questioned is, “if Professor Jamieson has the expertise and the experience that he claims, he was prepared to criticise Ms Cornelius's findings to the extent that he did solely on the basis of a note of her evidence”.  As explained herein, there was a perfectly sound and disclosed reason for such a restricted assessment to examine what was patent (the transcript) and to provide a sound critique to the specific instruction he had received.

Perhaps by design, perhaps not, the judgement (as in Reed & Reed) will provide material for those who seek to undermine Professor Jamieson, as he continues to challenge ‘scientific’ assertions which have no actual basis in reliable science.  Easier to attack the person than the science?  That, apparently, is the game that we are in. 

 

“Cause you've given up your sanity
For your pride and your vanity
Turns you sad on humanity”*

*From ‘Games People Play”, by Joe South

November 2017

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